UNOFFICIAL COPY AS OF 11/05/1803 REG. SESS.03 RS BR 122
AN ACT relating to forfeiture of property.
Be it enacted by the General Assembly of the Commonwealth of Kentucky:
Page 1 of 59
BR012200.100-122
UNOFFICIAL COPY AS OF 11/05/1803 REG. SESS.03 RS BR 122
Section 1. KRS 500.090 is amended to read as follows:
(1)All money or property which is subject to criminal forfeiture under any section of the Kentucky Penal Code or other title in the Kentucky Revised Statutes, or which is tendered to the Commonwealth or any city, county, urban-county, consolidated local, or charter county government therein pursuant to federal criminal forfeiture laws or regulations shall be disposed of in accordance with this section.
[(a)Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be destroyed by the sheriff of the county in which the conviction was obtained.
(b)Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be sold at public auction. The expenses of keeping and selling such property and the amount of all valid recorded liens that are established by intervention as being bona fide shall be paid out of the proceeds of the sale. The balance shall be paid to:
1.The state, if the property was seized by an agency of the state or peace officer thereof;
2.The county, if the property was seized by the sheriff or an agency or peace officer of the county;
3.The Department of Fish and Wildlife Resources, if the property was seized by a peace officer of the Department of Fish and Wildlife or was seized by any other officer for violation of KRS Chapter 150;
4.The city, if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the city property clerk;
5.The city (ninety percent (90%) of the proceeds) and the sheriff (ten percent (10%) of the proceeds), if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the sheriff or the county police; or
6.The state, if the property was seized by any combination of agencies listed above.
(c)Subject to the duty to return confiscated firearms and ammunition to innocent owners pursuant to this section, all firearms and ammunition confiscated by a state or local law enforcement agency, all firearms ordered forfeited by a court, and all abandoned firearms and ammunition coming into the custody of a state or local law enforcement agency and not retained for official use shall be transferred to the Kentucky State Police for disposition as provided by KRS 16.220. The transfer shall occur not more than ninety (90) days after the abandonment of the firearm or ammunition to the law enforcement agency or not more than ninety (90) days after its confiscation, unless a court requires the firearm or ammunition for use as evidence, in which case it shall be transferred to the Kentucky State Police not more than ninety (90) days following the order of forfeiture by the court or after the court returns the firearm or ammunition from use as evidence. Prior to the sale of any firearm or ammunition, the law enforcement agency shall make a bona fide attempt to determine if the firearm or ammunition to be sold has been stolen or otherwise unlawfully obtained from an innocent owner and return the firearm and ammunition to its lawful innocent owner, unless that person is ineligible to purchase a firearm under federal law. This subsection relating to auction of firearms and ammunition shall not apply to firearms and ammunition auctioned by the Department of Fish and Wildlife that may be sold to individual purchasers residing in Kentucky who are eligible under federal law to purchase firearms and ammunition of the type auctioned.
(d)If property which is forfeited under any section of this code is determined by the trial court to be worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset, the court may abandon any interest in such property. Property which is abandoned pursuant to this section shall be returned to the lawful claimant upon payment of expenses for keeping the property.
(e)Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official use in the following manner. Property which has been seized by an agency of the state may be retained for official state use. Property which has been seized by an agency of county, city, or urban-county government may be retained for official use by the government whose agency seized the property or for official state use. Property seized by any other unit of government may be retained only for official state use. The expenses for keeping and transferring such property shall be paid by the unit of government by which the property is retained.]
(2)Before forfeiture of any property under any section of this code or other title in the Kentucky Revised Statutes, it shall be the duty of the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If a lawful owner or claimant has been identified or is identifiable, then the court shall notify the owner or claimant that the property is being held and specify a reasonable period of time during which the claim may be made or the court may, in lieu thereof, order the return of the property to the lawful owner or claimant. If the lawful owner or claimant does not assert his claim to the property after notification or if he renounces his claim to the property, then the property shall be disposed of as provided in this section. It shall be the duty of all peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture to report the same to the trial court before the act of forfeiture occurs[Money which has been obtained or conferred in violation of any section of this code shall, upon conviction, be forfeited for the use of the state. This subsection shall not apply when, during the course of the proceeding in which the conviction is obtained, the person from whom said money was unlawfully acquired is identified].
(3)The trial court shall remit the forfeiture of money or property when the lawful claimant:
(a)Asserts his claim before disposition of the money or property pursuant to this section;
(b)Establishes his legal interest in the money or property; and
(c)Establishes that the unlawful use of the money or property was without his knowledge or consent.
This subsection shall not apply to a lienholder of record when the trial court elects to dispose of the property pursuant to subsection (7) of this section[Property forfeited under any section of this code shall be disposed of in accordance with this section only after being advertised pursuant to KRS Chapter 424. This subsection shall not apply to property which is designed and suitable only for criminal use or to money forfeited under subsection (2) of this section].
(4)If property which is forfeited under any section of this code or other title in the Kentucky Revised Statutes is determined by the trial court to be worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset, then the court may abandon any interest in such property. Property which is abandoned pursuant to this section shall be returned to the lawful claimant upon payment of expenses for keeping the property[The trial court shall remit the forfeiture of property when the lawful claimant:
(a)Asserts his claim before disposition of the property pursuant to this section;
(b)Establishes his legal interest in the property; and
(c)Establishes that the unlawful use of the property was without his knowledge and consent. Subsection (4) shall not apply to a lienholder of record when the trial court elects to dispose of the property pursuant to subsection (1)(b) of this section].
(5)Property forfeited under any section of this code or other title in the Kentucky Revised Statutes shall be disposed of in accordance with this section only after being advertised pursuant to KRS Chapter 424. This subsection shall not apply to property which is designed and suitable only for criminal use or to money forfeited under subsection (6) of this section[For purposes of this section, "lawful claimant" means owner or lienholder of record].
(6)Money which has been obtained or conferred in violation of any section of this code or other title in the Kentucky Revised Statutes shall, upon conviction, be forfeited to the general fund of the Commonwealth or to the general fund of the city, county, urban-county, consolidated local, or charter county government responsible for obtaining the conviction. This subsection shall not apply when, during the course of the proceeding in which the conviction is obtained, the person from whom said money was unlawfully acquired is identified[Before property which has had its identity obscured in violation of KRS 514.120 may be sold or retained for official use as provided in this section, the court shall cause a serial or other identifying number to be placed thereon and a record of the number assigned shall be placed in the court order authorizing the sale or retention of the property. This number shall be assigned, whenever applicable, in consultation with the Kentucky State Police and any other state or federal regulatory agency. The purchaser of the property shall be given a document stating that the property had been forfeited pursuant to law and that a number, shown on the document, has been assigned which shall be deemed as compliance of the owner with KRS 514.120. When property is returned to an owner pursuant to this section and its identity has been obscured by another person in violation of KRS 514.120, the court shall provide a document to the owner relieving him of liability for its continued possession. This document shall serve as evidence of compliance with KRS 514.120 by the owner or any person to whom he lawfully disposes of the property. This section shall not apply to any person after property has been sold or returned in compliance with this section who violates the provisions of KRS 514.120 with respect to that property].
(7)Property other than firearms which is forfeited under any section of this code or other title in the Kentucky Revised Statutes may, upon order of the trial court, be sold at public auction. The expenses of keeping and selling such property and the amount of all valid recorded liens that are established by intervention as being bona fide shall be paid out of the proceeds of the sale. The balance shall be paid to the general fund of the Commonwealth or to the general fund of the city, county, urban-county, consolidated local, or charter county government responsible for the seizure[Before forfeiture of any property under this section, it shall be the duty of the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If a lawful owner or claimant has been identified or is identifiable, the court shall notify the owner or claimant that the property is being held and specify a reasonable period of time during which the claim may be made or may, in lieu thereof, order the return of the property to the lawful owner or claimant. If the lawful owner or claimant does not assert his claim to the property after notification or if he renounces his claim to the property, the property shall be disposed of as provided in this section. It shall be the duty of all peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture to report the same to the trial court before the act of forfeiture occurs].
(8)Property which is forfeited under any section of this code or other title in the Kentucky Revised Statutes may, upon order of the trial court, be retained for official state use or for official use as follows:
(a)Property which has been lawfully seized by an agency of the Commonwealth may be retained by that agency for official state use; or
(b)Property which has been lawfully seized by an agency of city, county, urban-county, consolidated local, or charter county government may be retained for official use by the government whose agency seized the property.
The expenses for keeping and transferring such property shall be paid by the unit of government by which the property is retained.
(9)(a)Any money forfeited to the general fund of the Commonwealth shall have copies of the accompanying forfeiture order detailing the agency or agencies responsible for the seizure and any receipts of related transactions sent forthwith by the clerk of the court to the Finance and Administration Cabinet.
(b)Any property retained for official state use as provided in this section shall, within fifteen (15) days of retention, have its value assessed by the Revenue Cabinet, Department of Property Valuation. The department shall immediately file a copy of this valuation with the clerk of the court which ordered the property to be forfeited. The clerk shall forthwith send copies of the valuation, the accompanying forfeiture order detailing the agency or agencies retaining the property, and any receipts of related transactions to the Finance and Administration Cabinet.
(10)(a)Any money forfeited to the general fund of a city, county, urban-county, consolidated local, or charter county government shall have copies of the accompanying forfeiture order detailing any agency or agencies responsible for the seizure and any receipts of related transactions sent forthwith by the clerk of the court to the legislative body of the respective unit of government.
(b)Any property retained for official use as provided in this section shall, within fifteen (15) days of retention, have its value assessed by the property valuation administrator of the county in which the property is ordered to be forfeited. The property valuation administrator shall immediately file a copy of this valuation with the clerk of the court which ordered the property to be forfeited. The clerk shall forthwith send copies of the valuation, the accompanying forfeiture order detailing the agency or agencies retaining the property, and receipts of any related transactions to the legislative body of the unit of government to which the official or agency in possession of that article of property is attached.
(11)Any money or property received by an official or agency of the Commonwealth or by an official or agency of a city, county, urban-county, consolidated local, or charter county government pursuant to federal criminal forfeiture laws or regulations shall be accounted for as follows:
(a)Any money tendered to an official or agency of the Commonwealth shall be paid to the general fund of the Commonwealth. Any official or agency receiving money pursuant to this subsection shall promptly deliver copies of any accompanying forfeiture order detailing the agency or agencies responsible for the seizure and all receipts of related transactions to the Finance and Administration Cabinet.
(b)Any property tendered to an official or agency of the Commonwealth shall, within fifteen (15) days of receipt, have its value assessed by the Revenue Cabinet, Department of Property Valuation. The department shall promptly submit a notice of the valuation of the article of property received pursuant to this subsection with copies of any accompanying forfeiture orders or receipts detailing the agency or agencies responsible for the seizure to the Finance and Administration Cabinet. Any official or agency receiving property pursuant to this paragraph shall immediately notify the department of that fact and provide all necessary documentation under this paragraph.
(c)Any money tendered to an official or agency of a city, county, urban-county, consolidated local, or charter county government shall be paid to the general fund of the respective unit of government. Any local official or agency receiving money pursuant to this subsection shall promptly deliver copies of any accompanying forfeiture order detailing the agency or agencies responsible for the seizure and all receipts of related transactions to the legislative body of the unit of government to which that official or agency is attached.
(d)Any property tendered to an official or agency of a city, county, urban-county, consolidated local, or charter county government shall, within fifteen (15) days of receipt, have its value assessed by the property valuation administrator of that county. A contemporaneous notice for the assessed amount of that article of property shall then be delivered by the property valuation administrator to the legislative body of the unit of government to which the official or agency in possession of that article of property is attached. Any local official or agency receiving property pursuant to this subsection shall promptly deliver copies of any accompanying forfeiture order detailing the agency or agencies responsible for the seizure and all receipts of related transactions to the legislative body of the unit of government to which that official or agency is attached.